SOVEREIGNTY: 


A Commencement Address 


Before the Faculty, Graduates, and Students 


OF THE 


JEFFERSON SCHOOL OF LAW 


At Louisville, Ky., May 31, 1922 

BY 

SAMUEL M. WILSON 

OF 

Lexington, Kentucky 






















































SOVEREIGNTY 


A Commencement Address 


Before the Faculty, Graduates, and Students 


OF THE 


JEFFERSON SCHOOL OF LAW 


At Louisville, Ky,, May 31, 1922 


BY 


SAMUEL M. WILSON 

n 

OF 


Lexington, Kentucky 


Westerfield-Bonte Co., Inc., Louisville, Ky. 



Lampades Multae, Una Lux. 



Constitutions are in politics what paper money is in commerce. They 
afford great facilities and conveniences. But we must not attribute to 
them that value which really belongs to what they represent. They are 
not power, but symbols of power, and will, in an emergency, prove alto¬ 
gether useless unless the power for which they stand be forthcoming.— 
Macaulay. 

The brain that conceived this organization could not have been 
highly trained in the true spirit of American institutions. The organiza¬ 
tion and its purpose are repugnant to all the fundamental ideas upon 
which our government is based. The whole governmental structure is 
builded upon the rights and duties of the individual and any organiza¬ 
tion which contemplates the abdication by the individual of his sover¬ 
eignty, and the granting or giving over to another by him of the exercise 
of his duties of citizenship necessarily strikes at the foundation of the 
whole structure, and can not be tolerated.—Judge Turner, in Burns v. 
Lackey, 171 Ky. 38. 

Whatever each man can separately do, without trespassing upon 
others, he has a right to do for himself; and he has a right to a fair 
portion of all which society, with all its combinations of skill and force, 
can do in his favor. In this partnership all men have equal rights, but 
not to equal things. * * * And as to the share of power, authority, 
and direction which each individual ought to have in the management 
of the State, that I must deny to be among the direct, original rights of 
man in civil society; for I have in my contemplation the civil, social 
man, and no other. It is a thing to be settled by convention. 

If civil society be the offspring of convention, that convention must 
be its law. That convention must limit and modify all the descriptions 
of constitution which are formed under it. Every sort of legislative, 
judicial, or executory power, are its creatures. They can have no being 
in any other state of things; and how can any man claim, under the 
conventions of civil society, rights which do not so much as suppose its 
existence; rights which are absolutely repugnant to it?—Burke. 

A State is the common weal of a people; but a people is not every 
assembly of men brought together in any way; it is an assembly of men, 
united together by the bonds of just laws, and by common interests.— 
Cicero. 


■dm 

\nthoi' 

7.? I$tf 




SOVEREIGNTY 

I. 

Mr. Chairman, Ladies and Gentlemen: 

At the outset, I hasten to assure this audience that 
I make no pretense of bringing to its attention any¬ 
thing novel or original touching the nature of the 
State or the basis of Sovereignty. Nor would I be 
so vain as to imagine that these subjects have not al¬ 
ready received full and ample consideration at the 
hands of the students and instructors of the Jeffer¬ 
son School of Law. A complete exposition of the 
subject I have chosen for this address would require 
the labor of many minds and the study of a lifetime. 
Nevertheless, I have ventured to select the theory of 
sovereignty as a topic of discussion, first, because it 
is a topic which, by reason of its very elusiveness, 
has always proved fascinating to me; secondly, be¬ 
cause the events of the past eight years have tended 
to revive interest in the theme and to give it a meas¬ 
urable degree of timeliness; and, lastly, because its 
treatment here and now may, perchance, serve as a 
sort of pretext for getting you to renew your inquiries 
and to overhaul your conclusions respecting a pri¬ 
mary and fundamental postulate of all law. 

To set before you what I wish to say as pointedly 
and as concisely as possible, the most natural and 
most obvious mode of procedure would seem to be 
to consider (1) what is meant by sovereignty, (2) 


4 


how it has originated, and (3) in whom, both actually 
and theoretically, sovereignty is lodged or vested. 
This order of treatment will be followed, not slav¬ 
ishly but substantially, and, incidental to the main 
theme, I shall ask you to consider whether the gen¬ 
erally accepted American conception of sovereignty 
as something inherent in the citizen or in a majority 
of the citizens or, if you please, in the entire body of 
the citizens is a true or defensible conception. 

Sovereignty, as I use the term, is, of course, a 
political or juristic conception. As such it cannot 
exist apart from the State or from some political en¬ 
tity analogous to the State. Even if we concede that 
the people who constitute a given State may be the 
seat and source and ultimate depositaries of sov¬ 
ereignty, yet as to them it can have no real substan¬ 
tive meaning unless or until they sustain to one an¬ 
other a definite social or political relation. If it were 
conceivable that a political organism, such as the 
State, might voluntarily disintegrate and resolve 
itself into its constituent (not to say, its original ), 
elements, and thus bring about a condition where 
each and every citizen would be his own exclusive 
master, an all-sufficient law unto himself, and abso¬ 
lutely and entirely independent of all other of his 
fellow beings within the former bounds of the State 
so dissolved, it is difficult to see how sovereignty, in 
the commonly accepted sense, could be predicated of 
any single individual in that anomalous Condition. 
Self-mastery, self-control, self-command, however 


5 


desirable, necessary, or commendable, are obviously 
not enough to constitute political sovereignty. A 
solitary castaway on a desert island might say, in the 
language of Selkirk: 

I am monarch of all I survey, 

My rights there are none to dispute; 

From the centre all round to the sea, 

I am lord of the fowl and the brute; 

yet, in no true sense, could he claim to possess or ex¬ 
ercise the powers or functions of political sovereign¬ 
ty. In the very nature of things and by force of the 
word itself, sovereignty signifies the dominion of, at 
least, one person over, at least, one other person, in 
virtue of some social or political relation pre-exist¬ 
ing between them. If, instead of dominion, there 
be mutual restraint or mutual forbearance or a re¬ 
ciprocal arrangement of “give and take,” then the 
agreement or compact providing for such a partial 
surrender of personal freedom becomes to that ex¬ 
tent a type and an emblem of sovereignty, and the 
irresponsibility identified with personal isolation 
ceases. 

This may sound like an empty metaphysical ab¬ 
straction, but the thought will be worth considering, 
when we come to scrutinize certain political catch¬ 
words or phrases or maxims which have long done 
service in written constitutions and in our current 
legal nomenclature. 

The origin of sovereignty is coeval with the origin 
of the State or of the political organism out of which 


6 


the State has developed. “Law is at once the source 
and the expression of sovereignty. Law creates the 
state and the state creates law by a common and mu¬ 
tual impulse; the two are born at an instant, are in¬ 
separable through life, and must die together/’ 
“Somewhere in any political society must be found 
a ruling power, be it the folk, the oligarchy, or the 
king; and in that power the law-making function 
inheres. There is no law, then, without a sovereign; 
and the fundamental inquiry in any study of the ap¬ 
plication of law must be, what sovereign created the 
law in question.” It is a foundation stone in the 
teaching of elementary law that “a State is a political 
society, exercising supreme dominion over all per¬ 
sons and property within the territory which it oc¬ 
cupies and over which its jurisdiction extends.” 
“Sovereignty,” as the Supreme Court puts it, “is 
the supreme power by which any State is governed.” 
Less accurately, as it seems to me, the same Court has 
also said: 

“Sovereignty itself is, of course, not subject 
to law, for it is the author and source of law; but 
in our system, while sovereign powers are dele¬ 
gated to the agencies of the government, sov¬ 
ereignty itself remains with the people, by whom 
and for whom all government exists and acts.” 

It is the State, nevertheless, rather than the peo¬ 
ple as the authors and founders of the State, which 
is, at one and the same time, both political and su¬ 
preme. “This political supremacy of the State con- 


7 


stitutes its sovereignty, and is its one essential attri¬ 
bute.” 

Stated in another form, it may be said that “The 
State is the embodiment and personification of the 
power of the people. And this ‘power of the people/ 
in its highest dignity and greatest force, is sov¬ 
ereignty.” “Sovereignty is the essence of power, 
from which flow emanations of power.” It is “the 
concentrated fullness of political power or of the 
pow T er of the State.” Normally it is the coercive 
power of the State. But, mark you, this is not to 
say that such “sovereignty” means absolute, much 
less perpetual, power. The character of sovereignty, 
abstractly considered, depends upon the power resi¬ 
dent in the people or the power actually vested in the 
State by the people, as its creators. Absolute, om¬ 
nipotent pow r er cannot be claimed for the neonle any 
more than it can be claimed for the Crown or the 
State; whence springs the true maxim that “resis¬ 
tance to tyrants is obedience to God.” If with men 
politically unorganized, the majority overpower and 
rule the minority, or the stronger subdue the weaker, 
it is only in virtue of their superior force and not be¬ 
cause of any superior right inherent in a majority or 
the overmastering vis major. 

“Sovereignty is not the sum of separate special 
rights, but the political aggregate right”; it is, so to 
speak, a new right, arising out of the association of 
men, in a political mode and for political purposes, 
which does not exist apart from such association but 


8 


is begotten by it. In past ages, before the day of the 
“Utilitarians” and the so-called “analytical jurists,” 
like Austin and Bentham, it was customary to seek a 
foundation for sovereignty in some antecedent right 
to rule, such as a divine commission, which existed 
independently of any act of human volition; but the 
great change which they wrought in the theory of 
government consisted in the assertion that “sov¬ 
ereignty is not a question of right, but of fact;” that 
the sovereign is not the person entitled to rule, by 
birthright or right divine, but who does, in fact, at 
any given time or place, received the obedience ac¬ 
corded to a sovereign. Sovereignty, therefore, de¬ 
pends upon the existence of the State. “The State, 
as a person, is sovereign.” Hence, it is both natural 
and inevitable that we should associate the idea of 
sovereignty with the State, and that we should con¬ 
stantly speak of “the sovereignty of the State.” Fur¬ 
thermore, it cannot be too often repeated that “Sov¬ 
ereignty does not exist before the State, nor outside 
the State, nor above the State; it is the power and 
majesty of the State itself; it is the right of the 
whole.” 

To speak, as is so often done, of the “sovereignty 
of the people” is inaccurate and misleading, unless 
by “the people” is meant “not a loose multitude of 
individuals, but the politically organized whole. ’ ’ By 
“the people” some persons would seem to intend 
“simply the sum total of the individuals who find 
themselves brought together in the State,” that is 


9 


“the State resolved into its hypothetical elements,” 
and such philosophers attribute “the highest power 
to the inorganic mass, or (at least) to the majority 
of the individuals composing that mass.” But this 
radical and extreme conception is not compatible with 
the constitution of any State, not even with that of 
an absolute democracy, for even in an absolute de¬ 
mocracy it is (historically) the regular assembly of 
the people, acting, as a rule, by majority, and not the 
isolated, detached, and “atomized” multitude that 
exercises the State or aggregate power. “Govern¬ 
ment,” as Edmund Burke expressed it, “is not made 
in virtue of natural rights, which may and do exist in 
total independence of it. * * * Government is a 

contrivance of human wisdom to provide for human 
wants. * * * Society is, indeed, a contract (and) 
each contract of each particular State is but a clause 
in the great primeval contract of eternal society.” 

The origin of the State, and of “sovereignty” as 
a necessary and inseparable attribute of the State, 
has been sought by men in contract, in custom, in 
conquest, and as a divine endowment. The theory 
of a “social contract” superimposed upon a primi¬ 
tive “state of nature” or emanating from men who 
chance to meet in that crude state, which was ad¬ 
vanced by Hobbes, Locke, Rousseau, and others, has 
never risen above the plane of a mere speculative 
theory. It is completely negatived by all that we 
know of the history of the human race and of the 


10 


progress of political institutions. Hegel, in his 
“Philosophy of History/’ says: 

“If, therefore, freedom is asserted to consist 
in the individuals of a State all agreeing in its 
arrangements, it is evident that only the subjec¬ 
tive aspect is regarded. The natural inference 
from this principle is that no law can be valid 
without the approval of all. This difficulty is 
attempted to be obviated by the decision that the 
minority must yield to the majority; the major¬ 
ity therefore bear the sway. But long ago Rous¬ 
seau remarked that, in that case, there would be 
no longer freedom, for the will of the minority 
would cease to be respected. At the Polish Diet 
each single member had to give his consent be¬ 
fore any political step could be taken; and this 
kind of freedom it was that ruined the State. ’ ’ 

The germ of the State must be found in the moral 
nature of man as a “social being/’ as a “political 
animal/ ’ to use the time-honored phrase of Aristotle. 
“The moral sense, or conscience,” said Jefferson, 
“is as much a part of man as his leg or arm; as a wise 
Creator must have seen to be necessary in an animal 
destined to live in society.” To this he added: “I 
am convinced man has no natural right in opposition 
to his social duties.” 

Passing through the natural and successive grad¬ 
ations of the family, the family group or “house,” 
the clan, and the tribe, to the combination or consoli¬ 
dation of related tribes, Sir Henry Maine, in his il¬ 
luminating treatise on “Ancient Law,” declares that 
“The history of political ideas begins, in fact, with 
the assumption that kinship in blood is the sole pos- 


iL 


sible ground of community in political functions,” 
and reinforces his thesis with the statement that ar¬ 
chaic society “was not a collection of individuals, but 
an aggregation of families.” The primacy of the 
father, the elder brother, the patriarch, or the tribal 
chief, foreshadowed and prefigured the sovereignty 
of the perfected State, as we now know it, but it was, 
at best, but the germ of sovereignty. This suggestion 
of the learned jurist, however, is skilfully combatted 
by Walter Bagehot, in his masterpiece on “Physics 
and Politics.” Bagehot, in effect, carries us back 
to the “Stone Age,” and deals with mankind in an 
aboriginal state of isolation and formless cohesion or 
casual collision, as the case might be. He starts with 
the proposition that “Man, being the strongest of all 
animals, differs from the rest; he was obliged to be 
his own domesticator; he had to tame himself.” 
Xenophon seems to have had an inkling of the same 
idea when he said that man is the “hardest of all ani¬ 
mals to govern.” Individual self-government, how¬ 
ever, could hardly have been attained in a state of 
complete and lonely isolation. The conquest of self, 
the gradual curbing of animal passion, the regula¬ 
tion of the will, could only come from the action and 
reaction upon one another of many members of the 
human family, drawn together in groups or clusters 
by an intuitive sympathy, philanthropy, or impulse 
of self-preservation, or by other instincts native to 
the race. Self-government, born of a sort of social 
attrition, is the primordial germ of organized society 


12 


and of civil and political order. There could be no 
settled or lasting peace in any community without it. 
Hence, as an inevitable corollary, it follows that the 
right of local self-government, of home rule, is a 
primal, generic, and ineffaceable right, without which 
no genuinely free government can exist, and without 
which all other civil rights, whatever their nature, 
scope or magnitude, must constantly be in peril of 
loss or destruction, or tend to shrink into compara¬ 
tive insignificance. 

It may be admitted, at any rate, that man from 
the very beginning was a “social creature,” domi¬ 
nated at the outset by social instincts. Yet these 
must have operated, at first, within a very limited 
range. He is to be called, by nature, a “political 
animal,” only insofar as the strictly “political” 
phenomena of his development may be regarded as 
the symptoms or manifestations of his “social 
nature.” Both Maine and Bagehot agree, how¬ 
ever, that “old law (as it has come down to us) 
rests, not on contract but on status ” Habit, custom, 
usage, tradition were all-powerful, first, in determin¬ 
ing social relations, and, later, in determining re¬ 
ligious and political relations. The advance of man 
politically has been achieved by emancipating himself 
from the yoke of custom; and by the growing substi¬ 
tution of contractual relations for those of mere 
status. ‘ ‘ The great difficulty which history records, ’ ’ 
says Bagehot, “is not that of the first step, but that 
of the second step. What is most evident is not the 


13 


difficulty of getting' a fixed law, but getting out of a 
fixed law; not of cementing a cake of custom, but of 
breaking the cake of custom; not of making the first 
preservative habit, but of breaking through it, and 
reaching something better.” Continuing, he ob¬ 
serves : 


“It is connected with this fixity that jurists 
tell us that the title ‘contract’ is hardly to be dis¬ 
covered in the oldest law. In modern days, in 
civilized days, men's choice determines nearly all 
they do. But in early times that choice deter¬ 
mined scarcely anything. The guiding rule was 
the law of status. Everybody was born to a place 
in the community; in that place he had to stay; 
in that place he found certain duties which he 
had to fulfill, and which were all he needed to 
think of. The net of custom caught men in dis¬ 
tinct spots, and kept each where he stood. ’ 9 

This distinguished author, moreover, has well 
said that “The change from the age of status to the 
age of choice (i. e., contract or convention) was first 
made in States where the government was to a great 
and a growing extent a government by discussion, 
and where the subjects of that discussion were in 
some degree abstract or, as we should say, matters 
of principle. * * * A free state—a state of lib¬ 

erty—means a State, in which the sovereign power is 
divided between many persons and in which there is 
discussion among those persons.” In much the same 
spirit, some one has remarked that the nimble-minded 
Greeks were intolerant of constituted or stereotyped 
authority and respected no authority but that of ar- 


14 


gument; and, in quite recent times, democracy has 
been happily defined as meaning government by dis¬ 
cussion. 

Coming to our own day, the theories of both 
Hobbes and Filmer, Rousseau, and Sir Henry Maine, 
the champions respectively of the “divine right,” 
“social contract,” and “customary status” dogmas, 
have been pronounced erroneous, if not inadequate, 
to explain the origin of the State, and of sovereignty 
as the distinguishing feature of that institution. Ed¬ 
ward Jenks, an English scholar of the highest stand¬ 
ing, has, in his “History of Politics,” affirmed that 
“No fact has been more firmly established by modern 
historical researches than the origin of the State in 
conquest”; and we are assured that this is not a hy¬ 
pothesis but a conclusion resting upon the inquiries 
of innumerable scholars, especially English and 
French. This conclusion has been reached by tracing 
the development of the State back into the earliest 
period of which we have written records. The State 
emerged as the result of fusion through conquest of 
countless minor unities. Bagehot himself was aware 
of this truth, for, as he puts it, nations are founded 
in conquest because “the beginning of civilization is 
a military advantage;” and our own John Fiske has 
well described the diverse methods of nation-making 
in these words: “The Oriental method is conquest 
without incorporation; the Roman, conquest with in¬ 
corporation, but without representation; the English, 
conquest by incorporation with representation.” 



15 


To us, therefore, the imaginary “state of nature,” 
to which, in their philosophizings, Hobbes, in his 
Leviathan, and Rousseau, in his Contrat Social, 
harked back, seems visionary and fantastic, and the 
more modern and more acceptable view would seem 
to be, to use the words of a recent writer, that “the 
starting-point for the evolution of democracy is the 
origin of the State, for the roots of the present lie 
deep in the past, and the origin of the State is to be 
found in conquest and military rule. ’ ’ And, on this 
subject generally, much of what I am attempting to 
say will be found more copiously and more learnedly 
expounded in the first thiWchapters of Volume I of 
Tucker’s excellent treatise on “The Constitution of 
the United States.” 


II. 

With this preliminary glance at the rudiments of 
the subject, we pass to a consideration of the ques¬ 
tion, To whom does sovereignty belong? I have al¬ 
ready ventured the opinion that it does not belong 
to anybodyKmtside of or apart from the State. But 
I well know that this view does not generally obtain, 
and, perhaps, the reason why it does not generally 
obtain is because we have been confused and blinded 
not only by the course of recent events but by the 
trend of political discussion throughout the history 
of our conversion and growth into a State and a Na¬ 
tion. In our study of the subject we seem to have 


IG 


lost sight of the fact that the United States “sprang 
from a nation in which the State-making process had 
been going on for many hundred years,’’ and to have 
erroneously supposed that we ourselves had origi¬ 
nated or created much that we had, in fact, inherited. 
The formulas in which many, if not most, of our cher¬ 
ished political beliefs have been expressed, were not 
our own but were adopted bodily from another and 
more ancient source. Or, to put the thought, if I 
may, in borrowed language: “No doubt valuable 
additions have been made to the original structures, 
but it will be remembered that in every case democ¬ 
racy has been at work on original materials created 
by other hands.” 

What I shall further say, in attempting to answer 
the question propounded, To whom does sovereignty 
belong ? is not meant as a criticism of inherited con¬ 
ceptions of the State or of sovereignty in the State, 
so much as a possible contribution toward more exact 
and, if I may say it without being guilty of presump¬ 
tion, toward more rational and consistent views of 
the subject. It has been said by a recent writer in 
the same field that “Men are still as enslaved to dead 
ideas as when the barbarians followed the ghost of 
departed Rome, ’ ’ and it may be that some of us have 
not yet entirely escaped from this bondage. 

Be assured that I hold in becoming reverence the 
names and teachings of men like Aristotle and Cicero, 
among the ancients, as I do the names and teachings 
of men line Milton, Locke, Rousseau, Burke, Mack- 



17 


intosh, Paine, and Jefferson, among the sages of 
more recent times. But we need not go so far back 
to get a correct idea of how the prepossession, to 
which I allude, has worked in the minds of constitu¬ 
tion-makers and law-givers. 

The present Constitution of Kentucky, in that 
part of it commonly called the “Bill of Rights,” de¬ 
clares : 

“All men are, by nature, free and equal;” 

“All men, when they form a social compact, 
are equal;” 

“All power is inherent in the people, and all 
free governments are founded on their author¬ 
ity.” 

Whatever else may be said of these deliverances, 
all, I imagine, will agree that they are unmistakable 
echoes of the “social compact” theory of government, 
as appropriated and promulgated by Thomas Jeffer¬ 
son, in whose honor your school has been named, and 
by George Mason and certain of his equally cele¬ 
brated contemporaries. 

It is one thing, however, to say that government is 
founded in contract and quite another thing to af¬ 
firm that, at and before the formation of such con¬ 
tract, the parties thereto are, by nature, “free” and 
“equal,” and that “all power is inherent” in them, 
and that all free governments are founded “on their 
authority” and with their consent. By such expres¬ 
sions, I take it, it is intended to convey the idea that 
the powers and prerogatives of government, includ- 


18 


ing its sovereignty, are derivative from men in their 
natural state. 

But even the poet’s lines give a better clue to po¬ 
litical derivations than is discoverable in these con¬ 
ventional stock phrases of our time. 

“Freedom is growth and not creation; 

One man suffers, one man is free; 

One brain forges a constitution; 

But how shall the million souls be won? 
Freedom is more than a resolution— 

He is not free who is free alone.” 

This flash of political insight from John Boyle 
O’Reilly is not very unlike Cicero’s more statesman¬ 
like utterance: “Our State,” wrote the noble Ro¬ 
man, “did not spring from the brain of one man, but 
of many; nor was it matured in a lifetime, but in the 
course of generations and centuries.” 

The persistence of the idea that the natural man 
by himself alone is in some sort a sovereign is illus¬ 
trated by the utterances of some of our own most 
eminent jurists. Thus, in the early case of Davis v. 
Ballard, 1 J. J. Marshall, 563-582, decided June 17, 
1829, Judge Joseph R. Underwood, for the Court of 
Appeals, said: 

“We acknowledge no supreme power, except 
that of the people. * * * Our constitution 

is the supreme law, prescribed by the supreme 
power.” 

He further declared that the three separate and 
distinct bodies of magistracy, to wit, the legislative, 


19 


the executive, and the judicial, established by the con¬ 
stitution, taken all together, “represent the great 
body of the people, from whom their powers are de¬ 
rived, and in whom all power ultimately rests.’’ 

In the later case of Gaines v. Buford, 1 Dana, 
481-513, decided November 4, 1833, wherein separate 
opinions were delivered by Judges Underwood and 
Nicholas, Judge Underwood expressed himself some¬ 
what more conservatively as follows: 

“I shall notice one idea more in defense of 
the act ( i . e., the Occupying Claimant’s Act of 
1824), and only one. It is the appeal made in 
the preamble to the sovereign power of the State. 
I do not admit that there is any sovereign power, 
in the literal meaning of the terms, to be found 
anywhere in our systems of government. The 
people possess, as it regards their governments, a 
revolutionary sovereign power; but so long as 
the governments remain which they have insti¬ 
tuted, to establish justice and ‘to secure the en¬ 
joyment of the right of life, liberty, and prop¬ 
erty, and of pursuing happiness,’ sovereign 
poiver, or, which I take to be the same thing, 
power without limitation, is nowhere to be found 
in any branch or department of the government, 
either State or National; nor, indeed, in all of 
them put together. * * * The tenth article 

of our State Constitution, consisting of twenty- 
eight sections, is made up of restrictions and pro¬ 
hibitions upon legislative and judicial power, 
and concludes with the emphatic declaration, 
‘that everything in this article is excepted out of 
the general powers of government, and shall for¬ 
ever remain inviolate; and that all laws contrary 
thereto, or contrary to this constitution, shall be 
void.’ These numerous limitations and restric- 


20 


tions prove that the idea of sovereignty in gov - 
eminent was not tolerated by the wise founders 
of our systems. ‘Sovereign State’ are cabalistic 
words, not understood by the disciple of liberty, 
who has been instructed in our constitutional 
schools. It is an appropriate phrase when ap¬ 
plied to an absolute despotism. I firmly believe 
that the idea of sovereign power in the govern¬ 
ment of a republic is incompatible with the exist¬ 
ence and permanent foundation of civil liberty, 
and the rights of property. The history of man, 
in all ages, has shown the necessity of the strong¬ 
est checks upon power, whether it be exercised 
by one, a few, or many. Our revolution broke 
up the foundations of sovereignty in govern¬ 
ment; and our written constitutions have care¬ 
fully guarded against the baneful influence of 
such an idea henceforth and forever. I cannot, 
therefore, recognize the appeal to the sovereign¬ 
ty of the State, as a justification of the act in 
question.” 

This is a thoughtful and a weighty utterance, but 
it is worthy of notice, in passing, that Judge Nicho¬ 
las, in his separate opinion in the same case, while 
concurring in the final conclusion reached by his as¬ 
sociate on the bench, does not go into the subject 
of sovereignty, but contents himself with these more 
guarded words: 

“That doctrine would carry us a great way. 
How far it would carry us it is impossible at 
once to foresee. The mind cannot, at a single 
effort, cast itself over the whole circumference 
of its extension. It is not sufficiently clear to 
my mind that it will not go far enough to cripple 
and curtail powers that are essential and indis¬ 
pensable to all governments.” 


21 


The sentiments voiced by Judge Underwood may 
have been provoked by the Nullification controversy 
between President Andrew Jackson and the State 
of South Carolina, then fresh in the public mind, 
concerning which certain condemnatory resolutions 
had been adopted by the Legislature of Kentucky 
and which were approved on the 2d of February, 
1833. The long and interesting preamble to these 
resolutions, among other things, argues that, “Gov¬ 
ernment is the result of a convention between indi¬ 
viduals, deriving its just powers from the consent 
of the governed. There are no original sovereigns 
—save each individual man in a state of nature, and 
his sovereignty extends only to himself. All govern¬ 
ment is a trust, springing out of the necessities of 
mankind.’ ’ 

In an Introductory Lecture to the Law Class of 
Transylvania University, at Lexington, delivered by 
Judge George Robertson on November 7, 1835, he 
adverted to the same subject, using these words: 

“God and the people are the only actual sov¬ 
ereigns, according to the American creed.” 

This lecture was mainly devoted to a discussion 
of the much-debated question of State Sovereignty 
as opposed to National Sovereignty, and, in refer¬ 
ence to this supposed irrepressible conflict, Judge 
Robertson said: 

“So far as the general government has power, 
it is sovereign, and is, until its powers are re- 


yoked, the only sovereign to the extent of its ex¬ 
clusive authority. And, to this extent, the indi¬ 
vidual States cannot be sovereign, because, so 
far, they have no constitutional power. Each 
State is, however, in one sense, a sovereign—it is 
sovereign to the extent of its local power, and 
exclusively local interests. Sovereignty being 
the highest power in a State, the general govern¬ 
ment must be the only sovereign within its pre¬ 
scribed sphere, and each State in the Union must 
be the only sovereign within the scope of its 
residuary power. We speak, of course, of po¬ 
litical sovereignty. God and the people are the 
only actual sovereigns according to the Ameri¬ 
can creed. If the individual States possess as 
extensive and unqualified sovereignty or polit¬ 
ical power as they did before the adoption of the 
Federal Constitution, there is no general govern¬ 
ment—for there can be no government without 
inherent power to govern; and, consequently, if 
the people of the States are also citizens of the 
United States, and have a general government, 
they must have made that government by im¬ 
parting to it powers which must necessarily have 
been subducted from the original powers of the 
local governments. ” 

The doctrines of the Kentucky and Virginia 
Resolutions of 1798-’99 were supposed to have been 
exploded or themselves “ nullified’’ and rendered 
innocuous by the events of 1832-33, when the Na¬ 
tional Government seemed about to come into armed 
collision with the recalcitrant and obstreperous 
State of South Carolina, over the enforcement of the 
tariff laws; but twenty years later the Resolutions 
of ’98 and their implicit doctrine of “Nullification” 
were revived by the extraordinary action of one of 


the two great national parties. In the year 1852, 
in the Democratic National Convention held at Bal¬ 
timore for the purpose of nominating a candidate 
for the Presidency, the doctrines of the Virginia and 
Kentucky Resolutions were formally avowed as a 
rule of Democratic political faith; and, at Cincin¬ 
nati, in 1856, the same political views were adopted 
by the Democratic National Convention of that year. 
This appears from the sentiments embodied in a 
resolution promulgated by both of these national 
conventions in the following words: 

“ Resolved, That the Democratic party will 
faithfully abide by and uphold the principles laid 
down in the Kentucky and Virginia resolutions 
of 1798, and in the report of Mr. Madison to the 
Virginia Legislature in 1799; that it adopts 
those principles as constituting one of the main 
foundations of its political creed, and is resolved 
to carry them out in their obvious meaning and 
import.” 

The unsoundness of these views was ably demon¬ 
strated by Judge Robertson in a lecture to the Law 
Class of Transylvania University, delivered Novem¬ 
ber 4,1852, and again, in 1860, in an admirable essay 
by Hon. John B. Dillon, of Indiana, entitled “An 
Inquiry into the Nature and Uses of Political Sover¬ 
eignty.” 

After reviewing the subject at length, Judge 
Robertson concluded his lecture with these remarks: 

“We thus see that, in adopting the Consti¬ 
tution of the United States, the people of each 


24 


State surrendered the essential attributes of 
sovereignty, and, by delegating them to their 
common and only national government, depos¬ 
ited them on the altar of Union. And we may 
rest assured that no less a sacrifice of local 
power and pride could have assured the great 
objects of every patriot—national independ¬ 
ence, liberty and peace. 

“We can not fail, also, to see that the as¬ 
serted sovereignty of the individual States is 
altogether irreconcilable with the provisions of 
the Constitution of all the people of all the 
States, and would, if acknowledged, or usurped, 
lead to anarchy, confusion and civil war; to pre¬ 
vent all of which calamities, the wisdom of our 
fathers adopted the Constitution and estab¬ 
lished the government of the United States. 
And, as an inevitable consequence, we must all 
see that secession and nullification are revolu¬ 
tionary, and not constitutional, remedies for 
any local or personal grievance, whether imagi¬ 
nary or actual.” 

This may all seem plain and simple and indis¬ 
putable to us now, and to require no labored demon¬ 
stration, but by the Southern people of ante-bellum 
days, it was far from being universally admitted, 
and, in the end, owed its practical establishment not 
so much to abstract reasoning as to the logic of 
events. 

In his first message to Congress, of July 4, 1861, 
the overstrained doctrine of “State Sovereignty” or 
“State Rights,” as it was sometimes called, was vig¬ 
orously combatted by President Lincoln, who used 
this language: 


25 


“This sophism derives much, perhaps the 
whole, of its currency from the assumption that 
there is some omnipotent and sacred supremacy 
pertaining to a State—to each State of our Fed¬ 
eral Union. Our States have neither more nor 
less power than that reserved to them in the 
Union by the Constitution—no one of them ever 
having been a State out of the Union. * * * 
Having never been States either in substance or 
in name outside of the Union, whence this magi¬ 
cal omnipotence of ‘State Rights,’ asserting a 
claim of power to lawfully destroy the Union 
itself? Much is said about the ‘sovereignty’ of 
the States; but the word even is not in the Na¬ 
tional Constitution, nor, as is believed, in any 
of the State constitutions. 

“What is ‘sovereignty’ in the political sense 
of the term? Would it be far wrong to define it 
‘a political community without a political supe¬ 
rior’? Tested by this, no one of our States, ex¬ 
cept Texas, ever was a sovereignty. And even 
Texas gave up the character on coming into the 
Union; by which act she acknowledged the Con¬ 
stitution of the United States, and the laws and 
treaties of the United States made in pursuance 
of the Constitution, to be for her the supreme 
law of the land. * * * Unquestionably the 

States have the powers and rights reserved to 
them in and by the National Constitution; but 
among these surely are not included all conceiv¬ 
able powers, however mischievous or destruc¬ 
tive, but, at most, such only as were known in 
the world at the time as governmental powers; 
and certainly a power to destroy the government 
itself had never been known as a governmental, 
as a merely administrative power. This relative 
matter of national power and State rights, as a 
principle, is no other than the principle of gen¬ 
erality and locality. Whatever concerns the 


whole should be confided to the whole—to the 
general government, while whatever concerns 
only the State should be left exclusively to the 
State. That is all there is of original principle 
about it. Whether the National Constitution in 
defining boundaries between the two has ap¬ 
plied the principle with exact accuracy is not to 
be questioned. We are all bound by that de¬ 
fining, without question.” 

Great as is their interest, it may be fairly doubted 
whether this condensed narrative of the genesis of 
the Republic or the accompanying demarcation of 
the boundary line between State and National sov¬ 
ereignty can withstand the test of historical criti¬ 
cism. But the unique definition of political sover¬ 
eignty is, in truth, not “far wrong.” 

It is not the object of this address, however, to 
point out the boundaries between State Sovereignty 
and National Sovereignty. To this audience- that 
would be a work of supererogation. I merely touch 
upon that to indicate how vitally important the doc¬ 
trine of sovereignty has been in our history as a 
people, and how important it is even today that we 
grasp and hold fast, if possible, clear and correct 
conceptions of the meaning of sovereignty in a free 
State. 

Historically, I submit it is not true that political 
institutions among men originated out of contract or 
“common consent,” albeit that conception is, in the 
present age of the world, a valuable working hy¬ 
pothesis, and, for practical purposes, approximates 


-7 

accuracy and will suffice. Hegel well says: “The 
history of mankind does not begin with a conscious 
aim of any kind.” I take leave also to deny that “all 
men are, by nature,” politically free or politically 
equal. Political equality is attained only after what 
a great German jurist has called the “Battle for 
Right” or the “Struggle for Law.” I further take 
leave to question the broad assertion that 11 All power 
is inherent in the people,” though I freely admit that 
“all free governments are founded on their author¬ 
ity” and that “governments derive their just powers 
from the consent of the governed,” with due em¬ 
phasis on the words, “free” and “just.” 

I reaffirm that sovereignty, in a political sense, 
has no existence, other than a purely potential ex¬ 
istence, apart from organized government; and that 
it comes into being in the very act of creating and 
constituting a government, and is an attribute of the 
government, and not of the individuals who compose 
it or happen to live under it. 

In February, 1848, when, in France, the constitu¬ 
tional monarchy under Louis Phillipe, the “Citizen 
King,” was abolished and the second republic pro¬ 
claimed, an official manifesto, drawn up by Lamar¬ 
tine, as Minister for Foreign Affairs of the provi¬ 
sional government, declared: “Every Frenchman 
who has reached the age of manhood is a citizen of 
the State, and every citizen is a voter. Every voter 
is a sovereign. The law is equal, and is absolute for 


all. No citizen can say to another: You are sov¬ 
ereign to a greater extent than I.” 

The assertion that “every voter is a sovereign,” 
notwithstanding its prevalence in popular speech, is 
an extravagance that fails to command our assent. 
As a figure of speech intended to describe the ad¬ 
ministrative political function which each enfran¬ 
chised citizen exercises in wielding the ballot it may 
do no harm, but it can hardly be true, even in the 
most limited and restricted sense, that ‘‘every voter 
is a sovereign.” 


III. 

I realize that the strictures I have proposed with 
respect to terms widely current in popular political 
phraseology are not new. In the Kentucky Consti¬ 
tutional Convention of 1890-’91 substantially the 
same objections were raised by Governor Knott, who 
sat in that convention as the delegate from Marion. 
His somewhat “advanced views” were strenuously 
assailed by the Honorable Robert Rodes, of Bowling 
Green, delegate for the county of Warren and Chair¬ 
man of the committee on the “Bill of Rights.” He 
was one of the ablest members of that convention 
and his son, Mr. H. C. Rodes, of Louisville, has done 
for his distinguished father what ought long since 
have been done for many of his father’s associates. 
He has extracted from the voluminous debates the 
principal speeches of Robert Rodes in connection 


with the framing of the Bill of Rights and pub¬ 
lished them in book form. There are men in this 
audience, students of this law school, members of 
this graduating class, who, in all likelihood, may 
some day be called upon to revise or rewrite the Con¬ 
stitution of Kentucky. When that time comes those 
who aspire to leadership in the new generation can 
acquire no better equipment for their arduous task 
than that which is to be obtained by a careful and 
thorough study of the debates in the Constitutional 
Conventions of 1849 and 1890. If, when you ap¬ 
proach the undertaking, the huge size of the pon¬ 
derous volumes, in which those debates are recorded, 
appal you, let me suggest that you get hold, if you 
can, of the handy and unpretentious little book 
which contains the “Speeches of Robert Rodes,” and 
I confidently predict that the taste excited by the 
reading of that compilation will almost certainly 
reconcile you to the drudgery of poring over the 
pages of the official and unabridged reports of the 
Constitutional Debates. 

The political theory known as Socialism is, in my 
opinion, the most anti-social system that could pos¬ 
sibly be devised. Under it the citizen is completely 
subordinated to the State. The State is everything, 
man is nothing. Communism, on the other hand, is 
simply democracy gone mad; it is little better than 
“slavery organized.” Cicero seems to have had this 
insane delusion in mind when he said: “Excess of 
liberty, both with nations and individuals, eventu- 


30 


ates in an excess of servitude,” and Edmund Burke, 
with his accustomed sagacity and vividness of ex¬ 
pression, has laid it down for a truism that “men 
can not enjoy the rights of an uncivil and of a civil 
state together.” 

In the Soviet scheme of government, which has 
cursed the people of Russia during the past five years, 
the capital error is in maintaining that the Men- 
skiviki , the few, have no rights which the Bolsheviki, 
the many, are bound to respect; that absolute, un¬ 
limited, and uncontrollable power over the whole 
people is vested in the majority, and that the State, 
though a necessary evil in the present state of the 
world, must eventually be abolished, when capitalism 
is crushed, when the so-called “social revolution” is 
accomplished, and when all classes of society are re¬ 
duced to a common Proletarian level. Bolshevism or 
Sovietism (as we understand it), is an attempt to re¬ 
vert to a supposed “state of nature” that never had 
any real existence in fact and as an artificial condi¬ 
tion is wholly unbearable. But this pernicious doc¬ 
trine, the natural, not to say legitimate, offspring of 
the Hegelian teaching that the State is “all in all,” 
and of the idolatrous “ State-worship, ” which, until 
the Great War, was taught by Bernhardi and other 
members of the Prussian military caste and was as¬ 
siduously propagated and inculcated throughout the 
German Empire as the divinely ordained gospel of 
universal political salvation, is not confined to pro¬ 
tagonists of the Slavonic race. Here in America we 


have had our Apostles of error, who would recoil, 
with inexpressible horror, at the bare imputation 
that they had ever so much as heard the sinister name 
of Karl Marx. 

No less a person than James Buchanan, then 
President of the United States, in a message to Con¬ 
gress, on February 2, 1858, urging the admission of 
Kansas into the Union under what was known as the 
Lecompton Constitution, used these astounding 
words: 


“The will of the majority is supreme and ir¬ 
resistible when expressed in an orderly and law¬ 
ful manner. They can make and unmake con¬ 
stitutions at pleasure. It would be absurd to 
say that they can impose fetters upon their own 
power which they can not afterwards remove. 
If they could do this, they might tie their own 
hands for a hundred as well as for ten years. 
These are fundamental principles of American 
freedom, and are recognized, I believe, in some 
form or other by every State Constitution.” 

And, within the past year, on the floor of the 
Senate of the United States, a grave and dignified 
Senator solemnly averred, in reference to a pending 
measure: 

“Another objection is that it infringes the 
personal liberties and rights of the individual. 
Mr: President, there is no such thing as personal 
liberty in a republic. No man in a republic has 
any right to do what the duly constituted ma¬ 
jority has declared shall not be done.” 


32 


In the first case it fell to the lot of a Kentuckian, 
Judge Samuel Smith Nicholas, and in the later case 
to the lot of another Kentuckian, Senator A. 0. Stan¬ 
ley, in his recent address on “The Perils of Pater¬ 
nalism, ’ ’ to expose and denounce with masterly skill 
and conclusive logic this iniquitous political heresy. 

If you have not already done so, let me beg you to 
read and ponder those wonderfully able essays of 
Judge Nicholas on the “Powers of a State Conven¬ 
tion,” on the “Power of Majorities over Constitu¬ 
tions,” on “The Higher Law” and the “Law of 
War” and kindred subjects, which were first col¬ 
lected and published in book form in the year 1863, 
in the midst of the War Between the States. It is to 
Judge Nicholas that we are chiefly indebted for the 
incorporation into our Constitution of that precious 
provision, which first gained a place among the writ¬ 
ten guaranties of our fundamental law, in the Con¬ 
stitutional Convention of 1849-’50: 

“Absolute and arbitrary power over the 
lives, liberty and property of freemen exists no¬ 
where in a republic, not even in the largest ma¬ 
jority.” 

Some objection was made to the retention of this 
provision in our present Bill of Rights because it 
was contended that these words state a self-evident 
truth, which needed no formal constitutional sanc¬ 
tion to support it. But, in these pregnant and po¬ 
tent words, we find the “be all and the end all” of 
true political sovereignty. Some sort of theory of 


sovereignty is the corner-stone of every form of gov¬ 
ernment devised by man, and the supremacy of all 
law is conditioned on sovereignty somewhere; yet, 
for us, sovereignty itself is imbedded in the cardinal 
principle enunciated in the sentence I have just 
quoted, with its “thus far shalt thou go, but no far¬ 
ther. ’ ’ This principle is fundamental, infallible and 
indefeasible, because it is founded in truth and 
justice. 

In his powerful essay on “The Law of War,” first 
published in February, 1852, Judge Nicholas uttered 
these sublime words: 

“Arbitrary, despotic measures can never be 
politic measures to use against Americans for 
bringing them under obedience to the law, es¬ 
pecially if those measures are tainted with il¬ 
legality or usurpation. The exercise of usurped 
despotic power over an enlightened American 
agonizes every fibre of his moral sensorium. 
There is nothing he holds in greater abhorrence. 
The celebrated Edmund Burke, in his memo¬ 
rable denunciation of arbitrary power, declared 
that the people themselves could not, even by 
their own voluntary compact, be rightfully sub¬ 
jected to arbitrary power—that such a compact 
would be void. The people of Kentucky fully 
adopted this sentiment, and gave it a sort of con¬ 
secration by placing it in their constitution. ’ ’ 

Much misconception has arisen from certain ex¬ 
pressions used by Thomas Jefferson respecting the 
rights of a majority. In his First Inaugural, of 
March 4, 1801, he said: 


“Absolute acquiescence in the decisions of 
the majority—the vital principle of republics, 
from which is no appeal but to force, the vital 
principle and immediate parent of despotism, 
I deem (one of the) essential principles of our 
government and, consequently, (one) which 
ought to shape its administration. ’ ’ 

To this broad statement he was careful to annex 
the following qualification: 

“Bear in mind this sacred principle that, 
though the will of the majority is in all cases to 
prevail, that will, to be rightful, must be rea¬ 
sonable; that the minority possess their equal 
rights, which equal laws must protect, and to 
violate would be oppression.” 

But, on other occasions, he was not uniformly 
careful to explain his meaning, and it is at least 
doubtful whether the qualification given above is 
worded with sufficient care. Furthermore, I think 
we may fairly question whether the great statesman 
was careful always to distinguish between acts of the 
majority, unrestrained by constitutional barriers, 
and acts of the majority, under an organized and 
limited government, where their power and functions 
are strictly defined and circumscribed, and where 
they exert their power in an administrative capacity. 
In the former case, the rule of the majority cannot be 
justified; in the latter, it is a necessary rule for the 
practical administration of the government and for 
the orderly and effective transaction of business. The 
temporary majority is not the government, much less 


is it the State or supreme sovereignty. It is merely, 
for the time being, “the governing power.” The mi¬ 
nority of today may be the majority of tomorrow, 
and vice versa. Of course, decisions of the majority, 
taken in a lawful manner and on questions within the 
legal competency of such majority, must be accepted, 
acquiesced in, and obeyed, until revised or repealed. 

In all that I have said there has been no thought 
or suggestion of disrespect for constituted authority, 
and I would not have you for an instant think that 
I mean to impeach the true sovereignty of the State 
or the imperious and unchallenged supremacy of the 
Constitution and the laws. Nor do I mean to detract 
in any degree from the deference due the people or 
the honor which should he paid to every free-born 
American citizen in his own right, or to minimize 
the watchful jealousy with which his dear-bought 
rights, both constitutional and reserved, should be 
guarded. I believe, with all my heart, in “govern¬ 
ment of the people, by the people, for the people.” 
It is only with the precise definition and the impass¬ 
able limitations of sovereignty that I am here con¬ 
cerned. 

Sovereignty is the necessary concomitant of gov¬ 
ernment, and law is the authoritative expression of 
the sovereign will. Beyond this you need not be told 
that morality is the basis of all government, of all 
rightful political authority, and that back of every 
legal obligation will be found a corresponding moral 
obligation. Not only are private persons powerless 


30 


to impair their contracts, but, under our system, gov¬ 
ernment itself is likewise forbidden to impair the 
obligation of contracts. To treat the “social com¬ 
pact,” which we call a Constitution, or a covenant 
or league between States, which we call a Treaty, as 
a “mere scrap of paper,” is moral treason to our¬ 
selves and to our country; it is a gross impiety, a 
hideous sacrilege, an unspeakable profanation. No 
hypotheses of government based upon a theoretical 
“state of nature,” or upon the teachings of evolu¬ 
tion, or upon the historical evidences of man’s politi¬ 
cal beginnings in the twilight dawn of his career, or 
upon the so-called “social compact,” can alter or 
undo the fact that “the powers that be are ordained 
of God”; and this truth is recognized and acknowl¬ 
edged in the preamble of our present State Consti¬ 
tution, which expresses gratitude “to Almighty God 
for the civil, political, and religious liberties we en¬ 
joy. ” Political outlaws no less than ecclesiastical 
apostates should be warned that “whosoever resist- 
eth the power, resisteth the ordinance of God,” for, 
as Alexander Hamilton once dramatically declared, 
“The sacred rights of man are not to be rummaged 
for among old parchments or musty records. They 
are written as with the sunbeam in the whole volume 
of human nature by the hand of divinity itself and 
can never be erased by mortal power.” 


37 


IV. 

By the oath of office you will each take, upon your 
admission to the Bar, you will solemnly swear “that 
you will support the Constitution of the United 
States, and the Constitution of this Commonwealth, 
and be faithful and true to the Commonwealth of 
Kentucky, so long as you continue a citizen thereof; 
and that you will faithfully execute, to the best of 
your ability, the office of an attorney-at-law, accord¬ 
ing to law.” (Cons., Sec. 228.) Ever afterwards (to 
use the words of Henry Clay) you can proudly claim: 
“I owe allegiance to two sovereignties, and only two; 
one is the sovereignty of this Union, and the other 
is the sovereignty of the State of Kentucky.” As 
citizens of a great Republic, as sons of a mighty 
Commonwealth, as loyal votaries of that imperial 
Mistress, the Law, may you never forget the faith 
you will have plighted in the official oath you are 
soon to take. As you are true to that faith, so will 
you be true to yourselves, to your fellow-men, to 
your country, and to your God. 

Availing myself of the privilege which attaches 
to a senior in the profession, may I not take the lib¬ 
erty to entreat you, and each of you, both in your pri¬ 
vate and your professional capacity, to exalt the Com¬ 
monwealth, at all times and upon all occasions; to 
stand firm for its inviolable autonomy, for its dig¬ 
nity, its supremacy, and its majesty. Let no one, 
with your consent, scorn or contemn or belittle its 


sovereign authority, or trample under foot its lawful 
mandates. Treat an insult or an injury to the Com¬ 
monwealth as a personal injury or insult to your¬ 
selves. Remember that your sole duty is not to your 
profession; that you owe a prior and higher duty to 
the State, and to each and every subdivision thereof 
as “an effluence from the sovereignty of Kentucky.” 
Love, reverence, and extol, but, above all, serve Ken¬ 
tucky, and, wherever you may be, and whatever you 
may do, and whatever destiny fate may have in store 
for you, carry with you the consciousness that you 
have sworn to be “faithful and true to the Common¬ 
wealth of Kentucky.” Yet, at all times and in all 
circumstances, hold steadfast the conviction that this 
sacred pledge makes no demand of you to compromise 
the fact or to suppress the fact that the State was 
made for man, not man for the State. Bear always 
and everywhere in mind that there are innate and 
inestimable rights which the State can neither give 
nor take away, and that do not depend for their value 
or their validity upon any constitutional sanction 
whatever. By such means will the beneficent doc¬ 
trine of political sovereignty be kept within its 
proper bounds and yet lose none of its essential power 
or saving efficacy. 



library of congress 


o 019 308 984 7 


